Delhi District Court
The State vs Lekh Raj on 20 January, 2015
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
IN THE COURT OF SH RAJESH KUMAR GOEL:
ADDITIONAL SESSION JUDGE -5 (NORTH),
ROHINI , DELHI
SESSION CASE NO. : 01/2014
UID NO . : 02404R0222382013
FIR No : 227/13
P. S : Alipur
u/s 302/201 IPC
The State versus Lekh Raj
S/O Sh Rohtash Singh
R/O Village Tajpur Kalan, Delhi
Date of committal to session court : 29.11.2013
Date of argument : 20.01.2015
Date of order : 20.01.2015
JUDGMENT
1 Facts and circumstances giving rise to the present case, as per the story of the prosecution are that Rohtash (PW1) was constructing a house at a plot situated in village Tajpur. His son Akash(deceased) used to sleep at that plot in night to take care of building materials. On 15.5.2013, at about 8:00 pm, Akash left house and had gone to said plot as usual. On the next morning i.e on 16.5.2013, Arun, another SC No. 01/2014 State vs Lekh Raj (Page 1 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC son of Rohtash, went to said plot and found that Akash was not there and even his cot and bedding were found missing. Arun tried to trace Akash (deceased) in near by plot but he was not available. Arun noticed blood drops starting from said plot upto the agriculture field belonging to one Karam Singh. Arun also noticed fresh sign of digging of soil there. Arun came back to his house and told the facts to his father Rohtash. At about 8:07 am, Rohtash made a call to the PCR .
2 It is case of the prosecution that on receipt of aforesaid PCR Call S.I Amit Dahiya along with Ct. Bhagwan Dass reached at the spot and noticed fresh soil, appears to be dig recently and also noticed that from the house of the deceased to aforesaid field dead body was dragged and blood spots were also found there. Crime team was called . Soil was removed from the land by digging and from the pit, a dead body wrapped in a blanket was taken out. The face of the dead body was covered with the "chunni" type cloth and both the legs of the dead body were found tied with the rope . Said "chunni" type cloth SC No. 01/2014 State vs Lekh Raj (Page 2 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC was removed from the face of dead body and dead body was identified to be of Akash @ Monu . Dead body was sent to BJRM mortuary for postmortem.
3 According to the Prosecution, during the investigation it was revealed that accused Lekh Raj has committed the murder of Akash @ Monu. Accused Lekh Raj was arrested and his personal search was carried out. Disclosure statement of accused was recorded. Accused got recovered the weapon of offence i.e "Kassi" and the cloths which he was wearing at the time of committing murder. It is alleged the accused had washed of his cloths in order to screen himself from legal punishment. Aforesaid weapon of offence and cloths was sealed and seized. Postmortem on the body of the deceased Akash was got conducted and after postmortem dead body was handed over to his father.
4 On completion of investigation , accused Lekhraj was chargesheeted for the offences u/s 302/201 IPC.
SC No. 01/2014 State vs Lekh Raj (Page 3 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
5 Vide order dated 08.08.2013, Ld MM took
the cognizance of the offences and subsequently,
since the offence u/s 302 IPC was exclusively triable by the court of sessions, therefore, vide order dated 29.11.2013, case was committed to the court of sessions.
6 Vide order dated 26.08.2014, charges were decided and accordingly, accused Lekh Raj was charged for the offences u/s 302/201 IPC to which he pleaded not guilty and claimed to be tried.
7 In order to prove its case, prosecution has examined as many as Eight witnesses.
8 PW1 Rohtash is the father of Akash @ Monu (deceased and complainant) . He deposed that in the year 2013, he was constructing a residential house on a plot outside the village and his son Aakash used to sleep at that plot in the night to take care of the building material. On 15.05.13, his son Aakash, left his house at about 8PM and had gone to the above stated plot as usual. On the next morning, his SC No. 01/2014 State vs Lekh Raj (Page 4 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC younger son Arun went to the said plot and found that Aakash was not there. Arun tried to trace Aakash in the nearby plots but he was not available even there. Arun noticed some blood drops starting from the plot to upto an agricultural field which was of one Karam Singh. Arun also noticed fresh signs of digging of soil. Arun also noticed the signs of dragging through out the way from his plot to that agricultural field where signs of digging of soil were seen. Thereafter, Arun returned home and told this fact to him. He along with some other villagers reached there and noticed that whatever was told by Arun was absolutely correct. He made a call to the police at 100 number. PCR van reached at the spot and police officials from PS Alipur also reached there. Crime Team was also called at the spot. Police officials removed the fresh dug soil and under the soil, dead body of his son Aakash was found wrapped in a blanket. He removed the blanket from the body and noticed that legs of his son were tied with a rope and there were fresh injury marks on face, head and forehead and on his legs.
9 PW1 Rohtash further deposed that his son
SC No. 01/2014 State vs Lekh Raj (Page 5 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
Aakash was having some relations with a girl namely Manisha d/o Mahavir r/o Vill. Akbarpur Mazra and he had expressed doubts that behind the murder of his son, family members of Manisha may be involved. His statement ExPW1/A was recorded by the IO and FIR was registered. Site plan ExPW1/B of the place of occurrence was prepared by IO at his instance. police also prepared the recovery memo of the body ExPW1/C. The blanket and the rope were also seized by the police and the police had lifted the blood stained soil from/near the place of occurrence. The dead body of his son was shifted to mortuary BJRM hospital Jahangir Puri Delhi and the postmortem of the dead body was conducted on the same day. He had identified the dead body of his son vide statement ExPW1/D .
10. PW1 further deposed that in the evening on 16.05.2013, his eldest son Lekhraj @ Sonu was called at the PS along with his other son Arun . From the place where dead body of Akash was found, a piece of Chunni was also found lying and same was identified by his wife as that of her and which was washed by her on the previous SC No. 01/2014 State vs Lekh Raj (Page 6 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC night about 10:30 pm. On the next day i.e on 17.5.2013, accused Lekhraj had led the police to the plot of one Satish and from there he had got recovered one " Kassi" which was seized by the police vide seizure memo ExPW1/E . One more "Kassi/ Basoli" was also seized by the police. Since PW1 was not supporting the case of prosecution fully, therefore, he was cross examined by ld Adll PP for the state. Ld. Defence Counsel has also cross examine PW1.
11 PW2 Santosh deposed on the lines of PW1 Rohtash. She was also declared hostile by ld Adll PP for state as she was also resiling from her previous statement. PW2 was also cross examined by ld counsel for the accused .
12 PW3 Arun deposed that in the year 2013, his father got constructed a residential house on a plot outside the village. His brother Aakash (deceased) used to sleep at that plot in the night to take care of the building material. On 15.05.13, his elder brother Aakash, left his house at about 8PM and had gone to SC No. 01/2014 State vs Lekh Raj (Page 7 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC the above stated plot as usual. PW3 further deposed that on the next morning, when he went to the said plot he could not found Aakash there. Even, his cot and beddings were also missing. When he was searching for Aakash, he noticed some blood drops starting from their plot upto the agricultural field belonging to Karam Singh. He also noticed fresh signs of digging of soil and signs of dragging through out the way from their plot to that agricultural field where signs of digging of soil were seen. Thereafter, he returned home and told this fact to his father and mother. He along with his father and some other villagers reached there. His father made a call to the police at 100 number. PCR van reached at the spot and police officials from PS Alipur also reached there. Crime Team was also called at the spot. Police officials removed the fresh dug soil and under the soil, dead body of his brother Aakash was found wrapped in a blanket. His father removed the blanket from the body and noticed that legs of his brother were tied with a rope and there were fresh injury marks on face, head and forehead and on his legs. PW3 was cross examined by ld defence counsel.
SC No. 01/2014 State vs Lekh Raj (Page 8 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
13 PW4 Ct. Arvind Kumar is the witness who
assisted the IO's during investigation.
14 PW5 S.I Amit Dahiya deposed that on 16.05.2013, on receipt of PCR call he along with Ct. Bhagwan Dass reached at the spot i.e. field of Karam singh, Village Tajpur. There they noticed a fresh soil, which appeared to be dig recently. It was noticeable that from the house of the deceased to aforesaid field dead body was dragged and blood spots were also there. Senior officers and crime team also reached at the spot. In the presence of senior police officers, crime team and family members of the deceased the soil was removed and dead body was taken out from the pit. The dead body was found to be wrapped with the help of a blanket and hands and the legs were found to be tied with the help of rope and face was covered with the help of "chunni". On removal of Chunni, it was revealed that It was the dead body of Akash as disclosed by the complainant who was present there. There were injury mark on the dead body on the face, forehead and head. He recorded SC No. 01/2014 State vs Lekh Raj (Page 9 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC the statement of complainant Rohtash Ex.PW1/A and on the basis of same he prepared the rukka Ex. PW5/A and got registered the FIR. Dead body was removed to mortuary of BJRM hospital under the supervision of Ct. Arvind. Thereafter case was entrusted to IO Insp. Rajender Gautam and he assisted him during investigation . PW5 was also cross examine by Ld. Defence Counsel.
15 PW 6 Satyabhan is the witness in whose presence dead body was taken out from the pit and he also identified the dead body at the mortuary BJRM Hospital vide his identification statement ExPW6/A. 16 PW7 Insp. Jitender Singh was posted as SHO at P.S Alipur during relevant time. He deposed that he got prepared scaled site plan ExPX6 and collected photographs of the scene of crime . He obtained FSL results and filed supplementary chargesheet.
17 PW8 ACP Rajender Gautam is the second IO.
He deposed that on 16.05.2013, at about 8:07 am, a SC No. 01/2014 State vs Lekh Raj (Page 10 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC PCR Call was received vide DD no. 14 B Ex. PW-8/A about missing of son of Rohtash from the Plot / house and he was in suspicion that his son was brought to the field. SI Amit Dahiya alongwith Constable Bhagwan Lal reached at the spot from where they informed him about the suspicion of dead body of missing son of Rohtash in the fields. He along with Constable Arvind and Constable Vijender reached at the spot and found that a piece of land was freshly dug. With the help of Rohtash, the soil was removed from the land by digging the same and from the pit, a dead body wrapped in a blanket was taken out. The face of the dead body was covered with the chunni type cloth and both the legs of the dead body was tied with a rope. The said chunni type cloth was removed from the face of dead body and was shown to Rohtash who identified the dead body as of his son namely Akash @ Monu. There were injury marks on head, forehead and mouth of the deceased and the blood was oozing out from ears of the dead body. Crime team and the photographer was called at the spot. SI Amit Dahiya recorded the statement of Rohtash. In his statement, Rohtash made suspicion on the family SC No. 01/2014 State vs Lekh Raj (Page 11 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC members of Manisha D/o Mahavir regarding the murder of his son. Rohtash also stated in his statement that there was an affair between deceased Akash and Manisha and family members of Manisha were annoyed with their relation and they were objecting to it. SI Amit Dahiya prepared tehrir and sent the same through Constable Bhagwan Lal to PS for registration of FIR. Crime team inspected the spot but no chance print was found there. The blood spots were found near the spot and same were lifted by crime team and the same was sealed with the seal of 'RG' and also earth control of soil was taken and kept in a plastic container and sealed the same with the seal of RG and were taken into possession vide seizure memo Ex. PW-5/B. Photographs of the spot were taken by Constable Raj Kumar . Statement of witnesses was recorded. The dead body was sent to the Mortuary, BJRM Hospital through a Constable Anil Kumar. Inquest proceedings were conducted and the postmortem of the dead body of Akash was got conducted. Constable Arvind received the exhibits which was sealed with the seal of BJRM Hospital from the concerned Doctor of BJRM Hospital and the same SC No. 01/2014 State vs Lekh Raj (Page 12 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC were seized vide seizure memo Ex. PW-5/C. 18 PW8 further deposed that during the investigation, he interrogated Arun S/o Rohtash, Rajbir @ Raju, Mukesh R/o Village Jhangola, one Pankaj R/o Village Akbarpur Majra, Sita Ram R/o Village Akbarpur Majra, Satyabhan @ Satpal R/o Village Tajpur Kalan, Manisha and her father Mahavir R/o Village Akbarpur Majra. On receipt of secret information, he also interrogated Lekhraj @ Sonu S/o Rohtash who admitted that due to giving more importance to his younger brother Akash @ Monu by his parents, he killed Akash with the help of 'kassi'. On 17.05.2013, he arrested the accused Lekhraj @ Sonu vide arrest memo Ex. PW-1/F , his personal search was carried out vide memo Ex. PW-1/G and accused Lekh Raj made disclosure statement PW-1/G1 wherein he disclosed that he can get recovered the weapon of offence i.e. 'kassi' and also slippers and mobile of deceased.
19 PW8 further deposed that pursuant to the disclosure statement, he along with SI Amit Dahiya, SC No. 01/2014 State vs Lekh Raj (Page 13 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC HC Ajay , complainant Rohtash and accused Lekhraj reached at the spot at Village Tajpur Kalan. He prepared the pointing out memo Ex. PW-1/G2 . At the instance of accused Lekhraj , the weapon of offence i.e "kassi" was recovered from the plot of Satish. Accused also got recovered slippers and mobile phone Make NOKIA 7210 C, having number 9873991418 of deceased from the room used to keep the "bhusa" (chara). He prepared separate pullanda of kassi, mobile phone and slippers and sealed the same with the seal of 'RG' and the same was taken into possession vide seizure memo Ex. PW-1/E . Accused also got recovered his clothes which he was wearing at the time of murder from his house where he was residing. Two separate pullanda of his clothes were prepared and sealed with the seal of RG. Accused Lekh Raj has already washed his clothes with the soap. The soap was converted into a separate pullanda and was also sealed with the seal of RG and all these pullandas were taken in possession vide seizure memo Ex. PW-1/H. PW8 was cross examined by the ld defence counsel.
SC No. 01/2014 State vs Lekh Raj (Page 14 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
20 Here it is pertinent to mention that during
the trial certain documents i.e FSL results no. FSL
2013/B-4564 , Biology division report , FIR ,
Certificate u/s 65 B , Scaled site plan , Report of crime team , PCR form , Photographs, FSL result no.FSL 2013/B-4560, Postmortem report and subsequent opinion were admitted by the accused persons and in this regard separate statements were recorded. The said documents were given Exhibit marks as ExPX1 to ExPX12 respectively .
21 Thereafter prosecution evidence was closed and statement of accused u/s 313 Cr.PC was recorded. During the statement recorded u/s 313 CrPC , accused denied the incriminating evidence put to him. However, he did not opt to lead any evidence in his defence.
22 I have heard the ld Addll P.P for the state and Ld counsel for the accused . I have also perused the record very carefully.
SC No. 01/2014 State vs Lekh Raj (Page 15 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
23 Accused is facing trial on the allegations
that he has committed the murder of his brother
Akash @ Monu .
24 Since, there is no eye witness to the
incident , therefore, the case of the prosecution rests on the circumstantial evidence. The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances.
25 The legal position regarding the standard of proof and the test which the circumstantial evidence must satisfy is well-settled by a long line of decisions of Hon'ble Supreme Court. It is unnecessary to burden this judgment by making reference to all such decisions. I may content with reference to decisions in Sharad Birdhichand Sarda v. State of Maharashtra , (1984) 4 SCC 116, wherein Hon'ble Supreme Court laid down the following five tests to be satisfied in a case based on circumstantial evidence:
SC No. 01/2014 State vs Lekh Raj (Page 16 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC (1) The circumstances from which the conclusion of guilt is to be drawn should be fully established.
(2) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) The circumstances should be of a conclusive nature and tendency.
(4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
26 In the case in hand the prosecution in order to prove its case mainly relied on the following circumstances:
i) The death of Akash @ Monu was homicidal in nature.
ii) Motive
SC No. 01/2014 State vs Lekh Raj (Page 17 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
iii) Recovery of "Kassi" ( weapon of offence),
cloths belonging to accused, mobile phone and slippers belonging to deceased, at the instance of accused Lekh Raj.
i)THE DEATH OF AKASH @ MONU WAS HOMICIDAL IN NATURE
27 Postmortem on the body of Akash @ Monu was conducted by Doctor Sudesh Kumar and he gave detailed postmortem report ExPX11 (admitted by accused vide statement dt. 20.01.2015). He noticed the following injuries :
External injuries :
1 Sand present on body at places & lower part of both legs tied with Jute rope brown in colour by four folds.
2 Lacerated wound present at forehead medial side of left eye brow extend vertically upward on forehead, muscles, tissue vessel cut & frontal bone with fractured is seen. Size of wound = 3.5 X.5 X.5 cm(L X B X D).
3 Lacerated wound present at upper part right tempo-parietal region obliquely placed, muscles, tissue, vessel cut & fracture of temp parietal bone is seen & size of wound is = % X 2 X.5 cm (L XB X D ).
4 Lacerated wound presnt at left fronto temporal region , all muscles vessels, tissue cut & fracture of bone is seen. Size of wound SC No. 01/2014 State vs Lekh Raj (Page 18 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC is 3 X 1.5 X 1 cms. Blood and blood cot present at injury no. 2, 3 and 4.
Internal injuries On internal examination sub scalp Hametoma present of whole brain .Multiple fracture of scalp bone of temp parietal , tempo frontal & occipital bone present. SDH & SAH present at whole of the brain.
28 As per PM report ExPX11, the cause of death is cranio cerebral damage as a result of blunt force impact diverted upon head by other party. All injuries were ante mortem in nature, fresh in duration and sufficient to cause death in ordinary course of nature . This has not been disputed by the accused .
29 Dr. Sudesh Kumar is shown to have examined the weapon of offence i.e "Kassi " and has given subsequent opinion ExPX 12 (admitted vide statement dt. 20.01.2015). As per subsequent opinion Ex.PX12, the injuries as mentioned at serial no. 2,3 and 4 can be possible by this weapon or such similar type of weapon which is sufficient to cause death.
30 From the aforesaid subsequent opinion at
SC No. 01/2014 State vs Lekh Raj (Page 19 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
least it is clear that it was a murder and injuries
sustained by Akash @ Monu were possible from a
weapon like weapon of offence allegedly recovered at the instance of accused . Here this court is not giving any opinion that whether the weapon was really recovered at the instance of accused or not as it would be discussed little further but it stands established that such type of weapon was used for causing the death of Akash @ Monu which lends the support to the case of the prosecution. From the aforesaid circumstances and accepting the medical evidence, it is clear that Akash @ Monu (deceased) suffered a homicidal death.
ii) Motive 31 It is true that absence of motive may not necessarily be fatal to the case of prosecution. Where the case of the prosecution has been proved beyond reasonable doubt on the basis of the material produced before the Court, the motive loses its significance. But in cases based on circumstantial evidence, motive for committing the crime assumes great importance. In such SC No. 01/2014 State vs Lekh Raj (Page 20 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC circumstances, absence of motive would put the Court on its guard to scrutinize the evidence very closely to ensure that suspicion, emotion or conjecture do not take the place of proof (See Surinder Pal Jain v. Delhi Administration 1993 Supp (3) SCC 681 and Tarseem Kumar v.
Delhi Administration 1994 Supp (3) SCC 367).
32 Again reiterating the role played by motive in deciding as to whether the prosecution has proved the case beyond reasonable doubt against an accused, Hon,ble Apex in the case of Suresh Chandra Bahari v. State of Bihar : 1995 Supp (1) SCC 80 held as under:
"Sometimes motive plays an important role and become a compelling force to commit a crime and therefore motive behind the crime is a relevant factor for which evidence may be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act with illegal means with a view to achieve that intention. In a case where there is motive it affords added support to the finding of the Court that the accused was guilty for the offence charged with. But the evidence bearing on the guilt of the accused nonetheless becomes untrustworthy or unreliable because most often it is only the perpetrator of the crime alone who knows as to what circumstances prompted him to adopt a certain course of action leading to the commission of the crime."
33 Present case as indicated, is based upon SC No. 01/2014 State vs Lekh Raj (Page 21 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC circumstantial evidence, therefore, motive has relevance to know as to why accused would commit the murder of his real brother namely Akash @ Monu . According to the prosecution, accused Lekhraj was having grudge against his brother Akash @ Monu (deceased) as Akash @ Monu was given more importance by the family persons particularly parents. It is also the case of the prosecution that there was a quarrel between accused Lekh Raj and Akash @ Monu( deceased) on the issue of Motorcycle. Prosecution by examining PW1, PW2 and PW3, vainly attempted to prove the said motive.
34 PW1 Rohtash, PW2 Smt Santosh and PW3 Arun are father, mother and brother of deceased Akash @ Monu. They have stated nothing in this regard. PW1 and PW2 were cross examined by ld Addll PP for state . During cross examination by State , PW1 denied the suggestion that accused Lekhraj was having a grudge against Aakash @ Monu or there were used to be frequent altercations between them. He further denied that he had purchased a new motorcycle, accused Lekh Raj demanded the key of the motorcycle or that Akash (deceased) had asked PW1 not to give the key to accused Lekh Raj. PW1 further denied that once accused SC No. 01/2014 State vs Lekh Raj (Page 22 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC Lekh Raj had threatened Akash regarding the marriage of Akash. PW2 Smt Santosh, who is mother of accused Lekh Raj, has also denied the suggestion that a quarrel had taken place between Aakash @ Monu (deceased) and Lekhraj on the issue of Motorcycle.
35 Accordingly, prosecution has failed to establish the motive on the part of accused as alleged.
iii) Recovery of Kassi ( weapon of offence) , clothes belonging to accused , mobile phone and slippers belonging to deceased at the instance of accused Lekh Raj.
36 PW8 ACP Rajender Gautam, then Inspector, is the IO of the present case. He deposed that on receipt of secret information, he interrogated accused Lekh Raj who admitted his involvement and of having committed murder of his brother Akash @ Monu with the help of "Kassi". He further deposed that on 17.5.2013, he arrested accused Lekh Raj vide arrest memo ExPW1/F. Personal search of the accused is shown to have been carried out vide ExPW1/G. Disclosure statement is ExPW1/G1.
SC No. 01/2014 State vs Lekh Raj (Page 23 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
37 PW5 S.I Amit Dahiya, who was with the IO
Inspector Rajender Gautam has also deposed on the same lines and during his cross examination, he has denied the suggestion that accused Lekh Raj was lifted and arrested on 16.5.2013 and on the night of 16.5.2013 , accused was given beatings.
38 Arrest memo ExPW1/F is on record which indicates that according to the case of the prosecution, accused Lekh Raj has been arrested on 17.5.2013 and Rohtash is the witness to the arrest of the accused. The aforesaid claim of the prosecution has been falsified by PW1 Rohtash. PW1 deposed that in the evening of 16.5.2013, Lekh Raj was called at the police station along with his other son Arun. Police has made interrogation from Lekh Raj and during investigation Lekh Raj confessed to have committed the murder of Akash @ Monu. He further deposed that police made enquiry from him. Aforesaid testimony of PW1 has gone un-rebutted even during his cross examination done by ld Adll PP for state.
SC No. 01/2014 State vs Lekh Raj (Page 24 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
39 According to the prosecution, accused Lekh
Raj was arrested on receipt of secret information on
17.5.2013 whereas from the testimony of PW1, who is father of the accused, it has come on record that accused was called in the police station on 16.5.2013 and he was interrogated . The version given by PW1 cannot be doubted for the simple reason that arrest memo bears the signature of PW1 Rohtash and his testimony has gone unchanged and unchallenged to that effect. That being so, the manner in which the arrest of the accused has been shown by the prosecution , has become doubtful.
40 It is further case of prosecution that pursuant to the aforesaid disclosure statement ExPW1/G1, accused led the police party at the spot and pointed memo ExPW1/G2 was prepared. It is further alleged that at the instance of the accused weapon of offence was recovered from the plot of Satish. PW8 ACP Rajender Gautam, deposed that accused also got recovered mobile phone and slipper belonging to the deceased and SC No. 01/2014 State vs Lekh Raj (Page 25 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC the aforesaid Kassi, Mobile phone and slippers were sealed with the seal of RG and was seized vide seizure memo ExPW1/E. He further deposed that accused also got recovered the clothes which he was wearing at the time of murder from his house which he was wearing at the time of murder from his house where he was residing.
41 PW5 S.I Amit Dahiya has also deposed on the lines of PW8 in this regard. The aforesaid weapon of offence i.e "Kassi" , Mobile phone and slippers are shown to have been seized vide seizure memo ExPW1/E. Again according to the case of the prosecution, PW1 Rohtash is the witness to such recovery. PW1 Rohtash has given a contrary version as given by PW8 and PW5. Although during his examination-in-chief PW1 deposed that on 17.5.2013, accused led the police party to the plot of Satish and got recovered one "Kassi" which was seized vide seizure memo ExPW1/E bears his signature at point A but during his cross examination he replied that Kassi was recovered from the "Gher" of Satish in his presence. Number of public persons were there. Police took away the "Kassi" from there and it was not SC No. 01/2014 State vs Lekh Raj (Page 26 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC sealed in his presence at the spot. Whereas, as per the case of the prosecution weapon of offence i.e "kassi" was sealed and seized at the spot itself.
42 Further, PW3 Arun during his cross examination replied that police had taken away two "kassi" . One was lifted from the "gher" of Satish and second was lifted from their new under construction house but during cross examination PW8 Inspector Rajender Gautam replied that only one "Kassi" was recovered . If it was so, then there was no occasion for PW3 Arun to say that two "kassi" were taken away by the police i.e one from the "Gher" of Satish and one from the house of accused which was under construction . What happened to that second "Kassi" remains unexplained. Which weapon of offence was recovered from which place become doubtful in the background of the fact that it is come on record that weapon of offence was not sealed at the spot.
43 Further, It is not the case of the prosecution that
accused was in exclusive possession of the said plot
from where the "Kassi " is shown to have been
SC No. 01/2014 State vs Lekh Raj (Page 27 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
recovered. Owner of the said plot has neither been made a witness nor he was examined. Public were having access to the said area or fields . In the background of the fact that the place from where the weapon of offence was recovered, was open place and was accessible and visible to general public, therefore, the recovery of "Kassi " have become doubtful.
44 Moreover, even if for the sake of argument it is presumed that recovery of "Kassi" i.e weapon of offence was made it would not help the prosecution. The said weapon of offence was sent to for subsequent opinion and Dr. Sudesh Kumar had given the said opinion and same is Ex PX12 . As per the said opinion ExPX 12 , the injuries can be possible by this weapon or such similar type of weapon which is sufficient to cause death.
45 Now, the question arises whether only on the basis of this circumstance i.e recovery of possible weapon of offence at the instance of the accused, can accused be convicted for the offence of murder. The simple answer is' NO. In this regard , I may take the SC No. 01/2014 State vs Lekh Raj (Page 28 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC help of the decision of a case titled as Deepak Chaddha vs State of Delhi, 2012 (1) JCC 540 wherein Hon'ble High Court of Delhi held " We do not propose to deal with the purity of the evidence relating to the two recoveries i.e the recovery of the shirt and the knife at the instance of the appellant, for the reason, in the decisions reported as Kallo Passi Vs State, 2009(2) vs Chhatrasing & Ors., AIR 1977 SC 1753; Surjit Singh vs State of Punjab, AIR 1994 SC 110; Deva Singh Vs State of Rajasthan , 1999 CriLJ 265 , & Prabhoo vs State of UP, AIR 1963 SC 1113 the Supreme Court held that in the absence of other incriminating evidence, the circumstances of seizure of blood stained clothes at the instance of the accused as also the recovery of a possible weapon of offence at the instance of the accused are wholly in sufficient to sustain the charge of murder against the accused".
46 Similarly, recovery of clothes belonging to the accused and slippers and mobile phone belonging to the deceased has also become doubtful. As stated herein above, according to the prosecution accused got recovered aforesaid articles but PW1 Rohtash , who is shown as a witness to the said recovery, during his cross examination by ld counsel for the accused replied that at the time when the clothes of the accused were recovered by the police, accused Lekhraj was not there and at that time accused was at police station. Some SC No. 01/2014 State vs Lekh Raj (Page 29 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC police officials had come to his house and made enquiry from them about the clothes of accused Lekhraj and he pointed out the clothes and the same were taken away by the police. PW1 further replied that police took away the clothes of Lekhraj which were lying in a bucket along with the bucket to the P.S and said clothes were not sealed in his presence at his house. He further deposed that on 17.5.2013, police had come to him and he had handed over the mobile phone of accused Lekhraj to them. At that also accused was not with the police officials and they simply handed over the said phone to the police and police took away. He further replied that it was not sealed in his presence at his house.
47 PW1 Rohtash further replied that they had handed over the soap to the police on 17.5.2013 and police took away the same and it was not sealed in his presence. Not only that PW1 admitted his signature on the statement ExPW1/X but replied that statement was never read over to him and he is not aware of the contents thereof.
48 PW2 Smt Santosh has also deposed on the
SC No. 01/2014 State vs Lekh Raj (Page 30 of 32 )
FIR No. 227/13
D.O.D 20.1.2015 P.S Alipur
u/s 302/201 IPC
lines of PW1 Rohtash. During her cross examination she replied that on 17.5.2013 when the clothes of the accused Lekhraj were recovered by the police , accused was not there. At that time accused was in the police station. Some police officials had come to their house and took away the clothes of Lekhraj which were lying in the bucket along with the bucket to the P.S . She further replied that said clothes were not sealed in her presence at her house. PW2 also denied of having made any statement to the police stating that said statement ExPX2/X was never read over to her . This all has created serious doubt about the recovery of clothes of accused Lekhraj, mobile phone and slippers belonging to deceased Akash. Moreover, at the most this could be one more circumstance against the accused which is again not sufficient to convict of accused for the offence of murder.
49 In the present case, I find that the prosecution has failed to prove the offences against the accused Lekh Raj beyond shadow of doubt. The chain of evidence as brought on record by the prosecution is not so complete from which the conclusion of guilt against SC No. 01/2014 State vs Lekh Raj (Page 31 of 32 ) FIR No. 227/13 D.O.D 20.1.2015 P.S Alipur u/s 302/201 IPC the accused Lekh Raj can be drawn. Thus, I am left with no option but to acquit the accused Lekh Raj . Accused Lekh Raj therefore stands acquitted from the charges u/s 302/201 IPC .
50 In terms of section 437(A) CrPC, accused is directed to furnish bail bond in the sum of Rs 10,000/- with one surety in the like amount.
51 File be consigned to record room after necessary compliance.
Announced in the open (Rajesh Kumar Goel) Court today i.e 20.1.2015 ASJ-5, North, Rohini Courts SC No. 01/2014 State vs Lekh Raj (Page 32 of 32 )